Jamie Natoli v Dynamic Sawing & Drilling Pty Ltd & the Trustee for J & H Anderson Family Trust & the Trustee for the Born Family Trust
[2024] FWC 3004
•1 NOVEMBER 2024
| [2024] FWC 3004 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jamie Natoli
v
Dynamic Sawing & Drilling Pty Ltd & The Trustee For J & H Anderson Family Trust & The Trustee For The Born Family Trust
(U2024/8940)
| COMMISSIONER FOX | MELBOURNE, 1 NOVEMBER 2024 |
Application for an unfair dismissal remedy – Application dismissed pursuant to s.399A of the Fair Work Act 2009.
On 1 August 2024, Mr Jamie Natoli filed a Form F2 – Unfair dismissal application (Form F2) for a remedy for unfair dismissal application under s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is Dynamic Sawing & Drilling Pty Ltd & The Trustee For J & H Anderson Family Trust & The Trustee For The Born Family Trust as the Respondent (the Respondent).
The matter was listed for staff conciliation on 9 September 2024. The Respondent did not attend the staff conciliation and the Commission’s records indicate that Mr Natoli requested that the matter be referred for arbitration.
The matter was subsequently referred to me for determination.
On review of the materials filed by the parties, I noted that Mr Natoli had filed his Form F2 application 1 day outside the 21-day timeframe required to make a remedy for unfair dismissal application, having been dismissed on 10 July 2024. Therefore, a jurisdictional objection existed on the basis that Mr Natoli’s application was filed out of time, and an extension of time was required to be granted for Mr Natoli's application to proceed in the Commission.
The matter was listed for a Mention on 4 October 2024. A Notice of Listing was sent to parties on 26 September 2024. My Chambers sent an email to parties on 3 October 2024 requesting that the parties confirm their attendance for the Mention.
Directions were issued to the parties prior to the Mention on 4 October 2024. These Directions outlined the timeline for the filing and service of material ahead of the Determinative Conference/ Hearing which was listed for 21 October 2024. The correspondence attaching these Directions again noted that the matter was listed for a Mention on 4 October 2024.
Prior to the commencement of the Mention, my Chambers attempted to contact Mr Natoli by telephone twice and left voicemail messages alerting Mr Natoli to the listing and advising that should Mr Natoli not attend, the Mention would proceed in his absence.
Mr Born for the Respondent attended, however Mr Natoli did not, and the Mention proceeded in his absence. At the Mention, I went through the Directions issued to parties and the consequences of non-compliance with Directions.
The Directions required Mr Natoli to file an Outline of Argument, Statement of Evidence and Document List, with respect to the extension of time jurisdictional objection, by 3:00PM on 11 October 2024. Mr Natoli did not comply with Directions. On 6:00PM that day, my Chambers sent correspondence to notify Mr Natoli that no material had been received from him. This correspondence further alerted to Mr Natoli that there were consequences for the failure to comply with Directions, including that Mr Natoli’s remedy for unfair dismissal application may be dismissed.
Mr Natoli did not respond to this correspondence.
On 15 October 2024, parties were notified that the matter was listed for a Non-Compliance Hearing at 9:00AM on 17 October 2024. Mr Natoli was informed that if he did not attend the matter may be dismissed. Prior to the Non-Compliance Hearing, my Chambers sent further correspondence requesting that Mr Natoli confirm his attendance and advised him that if he did not attend, the Hearing would proceed in his absence. Chambers attempted to contact Mr Natoli by telephone prior to the Hearing, but Mr Natoli could not be reached, and a voicemail message could not be left at that time. On 16 October 2024, my Chambers also sent Mr Natoli a SMS message notifying him of the Non-Compliance Hearing.
Mr Born attended the Non-Compliance Hearing for the Respondent. Mr Natoli did not attend the Hearing. At the Non-Compliance Hearing, the Respondent made an application pursuant to s.399A of the Act for Mr Natoli’s application to be dismissed. I waived compliance with the Fair Work Commission Rules 2024 and accepted the application during the Non-Compliance Hearing.
Following the Non-Compliance Hearing, I determined it appropriate to give Mr Natoli time to respond to the s.399A application made by the Respondent. Correspondence was sent by my Chambers to Mr Natoli’s email address advising him of the Respondent’s s.399A application. This correspondence further advised that Mr Natoli had until 5:00PM on 18 October 2024 to respond to the s.399A application, and to provide reasons as to why he had not complied with the Direction to file and serve an Outline of Argument, Statement of Evidence and Document List, with respect to the extension of time jurisdictional objection, by 3:00PM on 11 October 2024, or attend the Mention on 4 October 2024, or attend the Non-Compliance Hearing held on 17 October 2024.
On 18 October 2024 at 2:08PM, my Chambers received correspondence from Mr Natoli. This correspondence stated that Mr Natoli had been ‘financially struggling and having an internet connection had been the least of [his] worries little alone getting to [his] emails on a regular basis.’ Mr Natoli further stated ‘[b]y all means if this doesn’t go ahead now I completely understand due to numerous chances on having my say as to why I believe an unfair termination took place.’ Mr Natoli then went on to make submissions responding to allegations made by the Respondent in the material it had filed with the Commission. Near the end of the correspondence, Mr Natoli states the following: ‘I have personally ran out of time filling in the rest of this email. If needed I can supply information for anything else missed in the above asap’.
In response to this correspondence, and noting that Mr Natoli has said that he may be able to provide materials promptly, my Chambers sent the following correspondence to the parties:
Dear Parties,
I refer to the abovementioned matter and the below correspondence from Mr Natoli.
The Commissioner notes the correspondence from Mr Natoli in response to the Commission’s correspondence of yesterday, and the application filed by the Respondent under s.399A of the Fair Work Act 2009.
In the circumstances, the Determinative Conference/ Hearing listed for 10:00AM AEDT on Monday, 21 October 2024 to determine the extension of time jurisdictional objection is vacated.
Respondent’s s.399A Application
Mr Natoli, the Commissioner notes your submission that you have had financial difficulty, and further, have had issues with your internet connection.
The Commissioner further notes no evidence has been provided in support of these submissions.
Directions
To determine the Respondent’s s.399A application, the Commissioner directs the parties as follows:
1.By no later than 4:00PM AEDT on Monday, 21 October 2024, the Applicant, Mr Natoli, is to file and serve any evidentiary material in support of the submissions contained in the correspondence sent to Chambers at 2:08PM AEDT this afternoon.
2.By no later than 4:00PM AEDT on Tuesday, 22 October 2024, the Respondent is to file and serve any material in reply to the Applicant’s material on its s.399A application.
The Commissioner will then determine the further conduct of the matter on receipt of submissions.
If the Respondent does not file any submissions in reply, the Commissioner will consider that there are no contested facts in relation to the s.399A application and will determine the application on the papers, and therefore, without a Determinative Conference/ Hearing on the s.399A application.
Unfair Dismissal Application
It is noted that no material has been filed by the Applicant in regards to whether the Commissioner should exercise her discretion to grant an extension of time.
Therefore, the Applicant has not complied with the Commissioner’s attached Directions of 4 October 2024.
If the Commissioner does not receive any material on the extension of time jurisdictional objection by 4:00PM AEDT on Monday, 21 October 2024, the Commissioner will determine the matter on the material currently before her.
Further information on unfair dismissals can be found here [link to the Fair Work Commission’s website] on the Commission’s website.
No response was received from either party in response to this correspondence.
Consideration
Section 399A of the Act outlines as follows:
399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a)failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b)failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
…
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.
Section 593 of the Act provides that the Commission is not required to hold a Hearing except as provided by the Act. While Mr Natoli made submissions on the reasons as to why he had previously failed to comply with the Commission’s Directions, I do not consider that there are contested facts which require a Hearing. I therefore determine that it is appropriate to determine the matter on the papers.
The power to dismiss under s.399A where the non-compliance is unreasonable is discretionary.[1] The Commission has used the nominated telephone number and email address provided by Mr Natoli in his Form F2 and Mr Natoli has had opportunities to engage in the Commission’s processes and prosecute his case. Despite these opportunities, including the further opportunity to file material responding to the jurisdictional objection, Mr Natoli has failed to provide material in response to the jurisdictional objection, nor has he requested an extension to provide material, despite being granted an extension on my discretion to file material.
In all the circumstances, I consider it appropriate to exercise my discretion under s.399A(a) and s.399A(b) of the Act to dismiss Mr Natoli’s remedy for unfair dismissal application. I am satisfied that Mr Natoli has unreasonably failed to attend the Non-Compliance Hearing on 17 October 2024, despite attempts by my Chambers to contact him before the Hearing both via his nominated email address and by telephone. I also consider that Mr Natoli has unreasonably failed to attend the Mention on 4 October 2024, and further has unreasonably failed to comply with my Directions of 4 October 2024 and also the Directions of 18 October 2024 to file material both on the jurisdictional objection and in support of his response to the Respondent’s s.399A application.
As I have determined it appropriate to exercise my discretion under s.399A of the Act, Mr Natoli’s remedy for unfair dismissal application is dismissed. An Order to this effect will be issued with this Decision.[2]
COMMISSIONER
Determined on the papers.
[1] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925.
[2] PR780895.
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